This class action suit, filed on March 15, 2018, sought to enjoin the U.S. Department of Homeland Security (DHS) from detaining asylum seekers in order to deter other potential migrants from seeking refuge in the United States. The plaintiffs, represented by the ACLU and private counsel, were ...
read more >

This class action suit, filed on March 15, 2018, sought to enjoin the U.S. Department of Homeland Security (DHS) from detaining asylum seekers in order to deter other potential migrants from seeking refuge in the United States. The plaintiffs, represented by the ACLU and private counsel, were asylum seekers who had been detained without individualized determinations that they posed a flight risk or danger to the community. The plaintiffs sued DHS under 42 U.S.C. § 1983 and alleged violations of the Immigration and Naturalization Act, the Administrative Procedure Act (APA), and the due process clause of the Fifth Amendment. They sought injunctive and declaratory relief. The case was filed in the U.S. District Court for the District of Columbia and assigned to Judge James E. Boasberg.

The plaintiffs stated that, upon arriving in the U.S., the government determined they had a credible fear of persecution and referred them to immigration courts for further assessment of their asylum claims. In the meantime, DHS detained them and did not provide individualized review of the need for detention. The plaintiffs argued that they were not detained due to individualized assessments that they pose a flight risk or danger to the community, but rather because DHS wanted to deter other migrants from seeking asylum in the U.S.

The plaintiffs argued that DHS adopted this broad policy of detaining asylum seekers at five Immigration and Customs Enforcement (ICE) offices--the offices in Detroit, El Paso, Los Angeles, Newark, and Philadelphia--on the basis that it would deter other migrants. The plaintiffs argued this policy was in violation of a 2015 opinion from this district court, as well as Supreme Court precedent holding that such general deterrence interests can inform criminal but not civil detention and that a conclusory national security interest was not sufficient to support the policy.

On March 20, 2018, the plaintiffs moved to certify the class, defined in the complaint as: "(1) All arriving asylum seekers; (2) who are found to have a credible fear of persecution or torture; and (3) who are or will be detained by U.S. Immigration and Customs Enforcement; (4) after having been denied parole under the authority of ICE’s Detroit, El Paso, Los Angeles, Newark, or Philadelphia Field Office."

The plaintiffs then moved for preliminary injunction on March 30, 2018, seeking to enjoin the government from continuing to apply its deterrence policy. On April 24, 2018, the government moved to dismiss the case, claiming that the court should dismiss the complaint in its entirety because the court lacked jurisdiction to grant constitutional injunctive relief and because the complaint failed to allege facts that, taken as true, could plausibly demonstrate that the alleged unlawful deterrence policy exists.

On July 2, finding that the circumstances warranted extraordinary relief, Judge Boasberg granted the plaintiffs’ motion for preliminary injunction and granted class certification on a provisional basis for purposes of the preliminary injunction. The court enjoined the defendants from denying parole to any provisional class member without first giving an individualized determination, through the parole process, that such provisional class member presented a flight risk or a danger to the community. Moreover, Judge Boasberg required that the individualized determinations be based on the specific facts of each provisional class member’s case rather than categorical criteria applicable to all provisional class members.

The court then held the motion to dismiss in abeyance as the parties worked together to implement the injunction and resolve outstanding issues outside of the courtroom. On Oct. 22, 2018 the court permitted the plaintiffs to conduct discovery for the limited purpose of determining if the government was complying with the preliminary injunction.

All arriving asylum seekers who are found to have a credible fear of persecution or torture and who are or will be detained by U.S. Immigration and Customs Enforcement after having been denied parole under the authority of ICE’s Detroit, El Paso, Los Angeles, Newark, or Philadelphia Field Office."

Implementation of Executive Order 13768, "Enhancing Public Safety in the Interior of the United States
The Washington PostDate: May 22, 2017 By: Jefferson Sessions (U.S. Department of Justice)[ Detail ][ External Link ]

Executive Order 13768: Enhancing Public Safety in the Interior of the United States
Federal RegisterDate: Jan. 25, 2017 By: President Donald Trump (Office of the President)[ Detail ][ PDF ][ External Link ]